Excerpt:.....under article 227 of the constitution.
- the file be consigned to the record room' in order to determine the question it is necessary to refer to order 17, rules 2 and 3, which read se follows 2. where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by order ix or make such other order as it thinks fit......does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. it is evident from the aforesaid rules that the court in the absence of the plaintiff could proceed to decide the suit or dismiss it under order 9, rule 8. from the tenor of the order dated february 19, 1979, it is clear that the subordinate judge did not decide the case on merits, as in doing so, it was expected that a speaking order should have been passed. on the other hand, from the language of the order it can be.....

Judgment:ORDER

1. This revision petition has been filed by the plaintiffs against the order of the Subordinate Judge 1st Class, Zira, dated May 10, 1979, dismissing the application of the petitioners for restoration of the suit.

2. Briefly, the facts are that the suit of the plaintiffs was dismissed on February 19, 1979. They filed an application for restoration of the suit on the same day The application was dismissed by the learned Judge, on the ground that he had disposed of the suit under O. 17, Rule 3 of the Code of Civil Procedure (hereinafter referred to as the Code) and had not dismissed it on the ground of absence of the plaintiffs. The plaintiffs came up in revision against the said under to this Court.

3. The only question that arises for determination is as to whether the order dated February 19, 1979 is under Order 17, Rule 3 or under Order 9, Rule 8 of the Code. The order of the Subordinate Court reads as follows:--

'The case has been given repeated calls but none has come present on behalf of the plaintiffs. Previously, five adjournments were granted to the plaintiffs but no evidence so far has been produced. It appears that the plaintiffs are not interested in prosecution of the suit. The suit, therefore, is dismissed with costs. The file be consigned to the record room'

In order to determine the question it is necessary to refer to Order 17, Rules 2 and 3, which read se follows

'2. Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

(Explanation:--Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present).

3. Where any party to a suit to whom time has been granted fails to produce his evidence, of to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is, absent, proceed under Rule 2.'

From a reading of Rule 3 conjointly with Rule 2 it is apparent that where any party to a suit to whom time has been granted fails to produce his evidence, there are four options for the Court--

(i) it may proceed to decide the suit, forthwith if the parties are present.

(ii) it may proceed to dispose of the suit in one of the modes prescribed in Order IX.

(iii) it may pass such other order as it thinks fit,

(iv) it may in its discretion proceed with the case if the evidence or a substantial portion of the evidence of any party has been recorded and such party fails to appear, an if such party were present.

4. Order 9 deals with consequences of non-appearance of either of the parties. Order 9, Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. It is evident from the aforesaid Rules that the Court in the absence of the plaintiff could proceed to decide the suit or dismiss it under Order 9, Rule 8. From the tenor of the order dated February 19, 1979, it is clear that the Subordinate Judge did not decide the case on merits, as in doing so, it was expected that a speaking order should have been passed. On the other hand, from the language of the order it can be safely inferred that the suit had been dismissed for the reason that the Plaintiffs were not present an the date of hearing. It cannot be denied that this order can also be passed under Order 17, Rule 3 read with Rule 2 and Order 9, Rule 8 of the Code. It has, however, been fairly admitted by the learned counsel for the respondents, that if the suit had been dismissed under Order 9, Rule 8 read with the aforesaid Rules, then the remedy of the plaintiff-petitioners was by filing an application for restoration. Therefore, the impugned order is liable to be set aside.

5. For the aforesaid reasons, I accept the revision petition, set aside the order of the trial Court and remand it for deciding the application for restoration afresh, Parties are directed to appear before the trial court on December 17, 1979 Costs in the revision petition shall be the costs in the suit.